Citation Nr: 9906701
Decision Date: 03/12/99 Archive Date: 03/18/99
DOCKET NO. 93-06 267 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for an
acquired psychiatric disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty in the United States Air
Force from June 1977 to July 1985.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in March 1992 by the Department of
Veterans Affairs (VA) regional office (RO) in Reno, Nevada.
A decision by the Board in January 1989 denied entitlement to
service connection for psychiatric disability. That decision
was not appealable to the United States Court of Veterans
Appeals (now renamed the United States Court of Appeals for
Veterans Claims) (Court). Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). In
December 1991 and thereafter, the veteran submitted
additional evidence in an attempt to reopen his claim. The
RO found that the additional evidence was not new and
material and the current appeal ensued.
By a decision on January 19, 1995, the Board found that new
and material evidence had not been submitted to reopen a
claim of entitlement to service connection for an acquired
psychiatric disorder. The veteran appealed the Board's
decision to the Court, which vacated the Board's January 19,
1995, decision and remanded the case to the Board for
additional adjudication. [redacted].
FINDINGS OF FACT
1. A decision by the Board of Veterans' Appeals in January
1989 denied entitlement to service connection for a
psychiatric disability on the basis that the veteran had not
had an acquired psychiatric disorder during active service or
since service.
2. Additional evidence submitted since January 1989 is so
significant that it must be considered in order to fairly
decide the merits of the veteran's claim.
CONCLUSIONS OF LAW
1. A decision by the Board of Veterans' Appeals in January
1989, denying entitlement to service connection for
psychiatric disability, is final. 38 U.S.C.A. § 7104(b)(West
1991); 38 C.F.R. § 3.104(a)(1998).
2. Additional evidence presented or secured since January
1989 is new and material, and the veteran's claim of
entitlement to service connection for an acquired psychiatric
disorder is reopened. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156(a)(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Except as provided in § 5108, when a claim is disallowed by
the Board the claim may not thereafter be reopened and
allowed and a claim based upon the same factual basis may not
be considered. 38 U.S.C.A. § 7104(b) (West 1991). If new
and material evidence is presented or secured with respect to
a claim which has been disallowed, the claim shall be
reopened and the former disposition of the claim shall be
reviewed. 38 U.S.C.A. § 5108 (West 1991).
"New and material evidence" means evidence not previously
submitted to VA decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant of prior evidence
and which, by itself, or in connection with evidence
previously assembled, is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156(a).
In order to be "material," evidence must be probative as to
each element which was a specified basis of the prior final
disallowance. Evans v. Brown, 9 Vet. App. 273 (1996); Hodge
v. West, No. 98-7017 (Fed. Cir. Sept. 16, 1998); Elkins v.
West,
No. 97-1534 (U.S. Vet. App. Feb.17, 1999)(en banc).
In the veteran's case, the specified basis of the decision by
the Board in January 1989, denying service connection for
psychiatric disability, was that the veteran did not have a
chronic acquired psychiatric disorder either during active
service or since service, but that he had only a personality
disorder. The Board concluded that under applicable law and
regulations, service connection could not be granted for a
personality disorder.
Additional evidence presented or secured since the Board's
January 1989 decision includes: a diagnosis of atypical
psychosis in October 1991 on admission to a public hospital;
and a diagnosis of chronic, severe paranoid schizophrenia in
August 1992 at a VA mental health clinic. The Board finds
that these items of additional evidence are new and, also,
probative as to the basis of the prior denial of the
veteran's claim and must be considered in order to fairly
decide the merits of the claim. Therefore, the veteran's
claim of entitlement to service connection for an acquired
psychiatric disorder will be reopened and considered on a de
novo basis. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R.
§§ 3.104(a), 3.156(a)
ORDER
New and material evidence having been submitted, a claim of
entitlement to service connection for an acquired psychiatric
disorder is reopened.
REMAND
The record reveals that that during active service the
veteran was found to have a personality disorder,
predominantly characterized as a paranoid personality
disorder. In February 1987 a physician who performed a VA
psychiatric examination on a contract basis diagnosed the
chronic acquired psychiatric disease of paranoia. However,
two VA psychiatrists who examined the veteran in May 1988 at
the Board's request both were of the opinion that the veteran
had a paranoid personality disorder rather than acquired
psychiatric disease. Personality disorders, as such, are not
diseases or injuries within the meaning of applicable
legislation providing compensation benefits. 38 C.F.R.
§ 3.303(c).
The evidence in the veteran's case also includes records of
several periods of hospitalization in 1991 and 1992 at a
public mental hospital. On admission to the hospital in
October 1991, diagnoses (utilizing the multiaxial system of
the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders--Third Edition,
Revised) included: on Axis I, atypical psychosis; and, on
Axis II, no diagnosis. During a second admission to the same
facility, diagnoses in December 1991 were: on Axis I,
paranoid psychosis; and, on Axis II, mixed personality
disorder with paranoid and obsessive compulsive features.
During a third admission, from December 1991 to January 1992,
the discharge diagnoses were: on Axis I, no diagnosis; and,
on Axis II, personality disorder, paranoid type.
The evidence of record also includes a notation in August
1992 by a multidisciplinary team at a VA mental health clinic
that, after an intake interview, the diagnosis was chronic,
severe paranoid schizophrenia. (The veteran refused
treatment at the clinic at that time.)
In the decision vacating the Board's prior denial of the
veteran's claim, the Court noted that 38 C.F.R. § 4.127
provides that "disability resulting from a mental disorder
that is superimposed upon...a personality disorder may be
service connected" and that 38 C.F.R. § 4.125(b) provides
that "If the diagnosis of a mental disorder is changed, the
rating agency shall determine whether the new diagnosis
represents progression of the prior diagnosis, correction of
an error in the prior diagnosis, or the development of a new
and separate condition." (These were changes to the rating
schedule which became effective November 7, 1996; see 61 Fed.
Reg. 52, 698-52,699 (Oct. 8, 1996).) The Court said that VA
was under a self-imposed duty to account for the differing
diagnoses, and determine whether the veteran's current
condition is related to the paranoid personality disorder.
Therefore, the Board has determined that this case should be
remanded to the RO for further development of the evidence.
Accordingly, this case is REMANDED to the RO for the
following:
The RO should arrange for the veteran to
undergo a psychiatric examination. The
examiner should review the veteran's
claims file and a copy of this REMAND.
The examiner should determine whether the
veteran currently has an acquired
psychiatric disorder on Axis I and/or a
personality disorder on Axis II, using
the multiaxial system of the American
Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders
(4th ed., 1994). In the event that the
examiner renders an Axis I diagnosis and
an Axis II diagnosis, he or she should
offer an opinion on the question of
whether the Axis I disorder is a
progression or maturation of the
personality disorder found during the
veteran's period of active service or is
a new and separate condition. A detailed
rationale for all opinions expressed
should be provided.
The RO should then ensure that the requested actions have
been completed and review the evidence to determine whether
the veteran's claim may now be granted. If the decision
remains adverse to the veteran, he and his representative
should be provided with an appropriate Supplemental Statement
of the Case and an opportunity to respond thereto. The case
should then be returned to the Board for further appellate
consideration. The purpose of this REMAND is to obtain
clarifying medical information. By this REMAND the Board
intimates no opinion as to the ultimate disposition of the
appeal. No action is required of the veteran until he
receives further notice.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
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